Tag: funding portal

Series A Preferred Stock

Owning Securities Won’t Make Your Funding Portal An Investment Company

On By crowdfundattnyIn Crowdfunding Portals, FINRA, PortalsLeave a comment

Funding portals are allowed to receive part of their compensation in securities of the issuer, as long as the securities are of the same class being offered to investors. For example, if an issuer raises $2M selling Series A Preferred Stock and the funding portal charges a 7% commission, it may take all or any part of the $140,000 as Series A Preferred Stock rather than cash.

Before long, the value of these securities might exceed the value of the funding portal’s business. Inquiring minds would wonder whether owning all those securities will turn the funding portal into an “investment company” within the meaning of the Investment Company Act of 1940.

It’s a good question, but fortunately the answer is No. Section 3(c)(2) of the Investment Company Act provides an exception for:

Any person primarily engaged in the business of underwriting and distributing securities issued by other persons, selling securities to customers, acting as broker, and acting as market intermediary, or any one or more of such activities, whose gross income normally is derived principally from such business and related activities.

Funding portals are engaged in the business of distributing securities issued by other persons (issuers) and should therefore fall within that description.

Two related issues.

Effect of Upstream Distribution: The owners of the funding portal would like to protect the pool of securities from the potential liabilities of the funding portal business (e.g., if the portal has been using a series LLC as a crowdfunding vehicle). Their first thought might be to distribute the securities upstream to the parent company and then put them into a new, wholly-owned subsidiary. But be careful. The new subsidiary might cause the parent to be treated as an investment company.

Effect on Option Pool:  Suppose the funding portal continues to own the securities, either directly or in a wholly-owned subsidiary. On one hand, the potential value of the securities would be attractive to employees and others holding options in the funding portal. On the other hand, the fair-market-value rules of section 409A of the tax code would require the funding portal to place a value on the securities frequently and, as the value of the securities climbs in relation to the value of the funding portal’s business, the value of the options would be less and less correlated with the success of the business, defeating the purpose.

Questions? Let me know. 

audience asking questions by raising hands

The Series LLC And Crowdfunding Vehicle: A Legal Explanation And A Funding Portal WSP

On By crowdfundattnyIn Crowdfunding Portals, Crowdfunding Vehicles, Series LLCLeave a comment

Lots of people have asked for a legal explanation in response to my previous post about crowdfunding vehicles and the series LLC. Plus, many funding portals will want a Written Supervisory Procedure (WSP) addressing the issue.

Here’s the legal reason why a “series” of a limited liability company can’t serve as a crowdfunding vehicle.

Rule 3a-9(b)(1) (17 CFR §270.3a-9(b)(2)) defines “crowdfunding vehicle” as follows:

Crowdfunding vehicle means an issuer formed by or on behalf of a crowdfunding issuer for the purpose of conducting an offering under section 4(a)(6) of the Securities Act as a co-issuer with the crowdfunding issuer, which offering is controlled by the crowdfunding issuer.

You see the reference to the crowdfunding vehicle as an “issuer” and a “co-issuer.”

Now here’s a C&DI (Compliance & Disclosure Interpretation) issued by the SEC in 2009:

Question 104.01

Question: When a statutory trust registers the offer and sale of beneficial units in multiple series, or a limited partnership registers the offer and sale of limited partnership interests in multiple series, on a single registration statement, should each series be treated as a separate registrant?

Answer: No. Even though a series of beneficial units or limited partnership interests may represent interests in a separate or discrete set of assets – and not in the statutory trust or limited partnership as a whole – unless the series is a separate legal entity, it cannot be a co-registrant for Securities Act or Exchange Act purposes.

Note the conclusion:  “. . . .unless the series is a separate legal entity, it cannot be a co-registrant for Securities Act or Exchange Act purposes.”

A “series” of a limited liability company is not a separate legal entity. Under section 218 of the Delaware Limited Liability Company Act and corresponding provisions of the LLC laws of other states, if you keep accurate records then the assets of one series aren’t subject to the liabilities of another series. That makes a series like a separate entity, at least in one respect, but it doesn’t make the series a separate legal entity. A motorcycle is like a car in some respects but it’s not a car.

That’s the beginning and end of the story:  a crowdfunding vehicle must be an “issuer”; a series of a limited liability company can’t be an “issuer” because it’s not a separate legal entity; therefore a series of a limited liability company can’t be a crowdfunding vehicle.

Maybe someone will challenge the application of the C&DI in court. Until that happens the result is pretty clear.

A couple more things.

First, this same C&DI is the basis of many successful offerings under Regulation A. Suppose, for example, that you’d like to use Regulation A to raise money for real estate projects (or racehorses, or vintage cars, or anything else), but you don’t want to spend the time and money to conduct a Regulation A offering for each project. This same C&DI allows sponsors to treat the “parent” limited liability company as the only “issuer” in the Regulation A offering even while allowing investors to choose which project they’d like to invest in and segregating the projects in separate “series” for liability purposes. If each series were a separate issuer that wouldn’t work.

Second, suppose a funding portal creates a new series for each offering and has conducted 25 offerings (that is, 25 series for 25 crowdfunding vehicles), each with a different type of security (one for each offering). Because we know that only the “parent” can be an issuer:

  • They’ve violated Rule 3a-9(a)(3) because the parent has issued more than one class of securities; and
  • They’ve violated Rule 3a-9(a)(6) because there is no one-to-one correspondence between the securities of the parent and the securities of the crowdfunding issuer.

To quote Simon & Garfunkel, any way you look at this you lose.

If you’re a funding portal, you’ll probably be asked by FINRA to add a WSP dealing with crowdfunding vehicles. Here’s an example.

Questions? Let me know. 

PODCAST: Title III Crowdfunding Changes with Mark Roderick

On By crowdfundattnyIn Podcasts, Title III, Title III CrowdfundingLeave a comment

Crowdfunding continues to grow in popularity. It is a way to democratize the world of real estate investing, which historically has only been open to super-wealthy Americans. Its growth and positive outcomes have led to several changes being made in the space. Mark Roderick, our guest today, joins us to unpack these developments and the positive influence that they will have on real estate investing. In this episode, Mark presents an overview of the current crowdfunding space.

Title III Crowdfunding Changes with Mark Roderick

Key Points From This Episode:

  • Learn more about Mark and his expertise as a crowdfunding attorney
  • An overview of the crowdfunding basics and the difference between Title II, III, and IV.
  • Find out about some of the excellent changes the SEC has made related to crowdfunding.
  • How broker-dealers with a wide product mix make real estate accessible to more people.
  • ‘Title’ refers to the different types of crowdfunding as per the JOBS Act of 2012.
  • Why the Title III changes will make it easier to syndicate, even if you’re not a broker-dealer.
  • An explanation of what a funding portal is and the simple steps to set one up.
  • Learn about some of the drawbacks of establishing a funding portal.
  • Some of the changes Mark expects will happen with Title III advertising.
  • Other changes that the SEC has made around crowdfunding.
  • How Mark gives back and where you can get hold of him.

SEC Provides Guidance On Advertising By Title III Issuers

On By crowdfundattnyIn SECLeave a comment

sec guidance

The SEC just provided guidance for Title III issuers in the form of Compliance and Disclosure Interpretations. You can read the CD&I’s themselves here.

Before Filing

Before filing Form C (the disclosure document used in Title III) and being listed on a Funding Portal, a Title III issuer may not take any action that would “condition the public mind or arouse public interest in the issuer or in its securities.” That means:

  • No Demo Days
  • No email blasts or social media posts about the offering
  • No meetings with possible investors

After Filing

Once a Title III issuer has filed Form C and been listed on a Funding Portal, any advertising that includes the “terms of the offering” is subject to the “tombstone” limits of Rule 204. The “terms of the offering” include the amount of securities offered, the nature of the securities, the price of the securities, and the closing date of the offering period.

Advertising that does not include the “terms of the offering” is not subject to Rule 204. Theoretically, for example, an issuer could attend a Demo Day after filing its Form C, as long as it didn’t mention (1) how much money it’s trying to raise, (2) what kind of securities it’s offering, (3) the price of the securities, or (4) the closing date of its offering.

Three caveats:

  • Have you ever been to a Demo Day? It’s hard to imagine someone wouldn’t ask “How much money are you trying to raise?” or that the company representative wouldn’t answer. Theoretically possible, yes, but in practice highly unlikely.
  • Even the statements “We’re selling stock” or “We’re issuing debt” are “terms of the offering” and therefore cross the line.
  • There’s an interesting difference between the regulations themselves and the CD&Is. The regulations say “terms of the offering” means the items mentioned. The CD&Is, on the other hand, say “terms of the offering” include the items mentioned. Thus, if you take the CD&Is literally, maybe “terms of the offering” also include other things, like the start date of the offering.

Video

After filing, a Title III issuer can use video to advertise the “terms of the offering,” as long as the video otherwise complies with Rule 204.

Media Advertisements

After filing, if a Title III issuer is “directly or indirectly involved in the preparation” of a media article that mentions the “terms of the offering,” then the issuer is responsible if the article violates Rule 204.

EXAMPLE:  You attend a Demo Day, and the organizer announces how much money you’re trying to raise. You violated Rule 204.

EXAMPLE:  A reporter from your local paper calls. Eager for the free press, you tell her you’re raising $200,000 for a new microbrewery in town, which she repeats in her article. You violated Rule 204.

EXAMPLE:  A reporter from your local paper calls. Eager for the free press, but very savvy legally, you tell her about your plans for the microbrewery but carefully avoid telling her how much money you’re raising or any other “terms of the offering.” She goes to the Funding Portal and finds out herself, and reports that you’re raising $200,000. You violated Rule 204.

To be safe, you just can’t be involved, directly or indirectly, with anyone from the press who doesn’t understand Title III and promise, cross her heart and hope to die, not to disclose any “terms of the offering.”

Advertisements on the Funding Portal

Advertising a Title III offering outside the Funding Portal is a minefield. But inside the Funding Portal is a completely different story. Inside the Funding Portal is where everything is supposed to happen in Title III. Focus your attention there, where the minefields are few and far between.

Questions? Let me know.